San Jose Attorney - Almaden Times Articles

California Supreme Court To Hear Case About Patdown Searches At Football Games

This week's question:

I read online this past week something about the California Supreme Court will decide about the legality of patdown searches at football games. Is this true? Do you know anything about this? I have a real problem with those patdown searches every time I go to a 49er game-which is all the time.

/s/Ernie E.

Almaden Valley

Dear Ernie-

I am with you, Ernie. It is irritating every time I go to a Raiders home game at the Coliseum in Oakland-which is also all the time. (Missed only two home games in Oakland in 30 years.)

Now, back to the legal issues. You may recall that back on July 27, 2007, I wrote a column in this paper entitled "Patdown Searches Before You Enter the Football Stadium May Be OK". The case involved long-term season-ticket holders who filed suit to have the patdown searches stopped. The name of the case is Sheehan v. The San Francisco 49ers, Ltd.

If you wish, you can read that Almaden Times column by going to my website, www.almadenvalley.lawyers.com . On the home page, click on "Times Articles". The next screen will be "San Jose Attorney-Almaden Times Article". Scroll down a few articles to "July 25, 2007" and it will be on your monitor.

The trial court in the Sheehan v. 49ers case held that the plaintiff season-ticket holders did not and could not state valid grounds for a suit because they did not and could not demonstrate that they had a reasonable expectation of privacy under the circumstances upon being searched at the entry to the football stadium.

Later, the Court of Appeal for the First Appellate District, Division Four, agreed and upheld the trial court and said in effect that patdown searches are OK in those circumstances.

Toward the end of the column I wrote that: "A note of caution: the case was decided very recently so I would imagine there is a chance that it could be taken up by the California Supreme Court. If that happens, I will try to be on the lookout for it and keep you posted."

Good thing I wrote that, since the plaintiffs in that suit filed a Petition for Review with the California Supreme Court that was granted on October 10, 2007.

The statement of issues as stated in the California Supreme Court web site reads as follows:

(1) Did ticket holders of the San Francisco 49ers football team impliedly consent to the team's policy of conditioning admission to its stadium on submission to a patdown search when they purchased season tickets with knowledge of that policy?

(2) If so, did that consent extinguish any reasonable expectation of privacy with respect to the searches as a matter of law, such that the trial court was not required to consider the justifications in support of the policy or balance plaintiffs' privacy interests against the team's countervailing interests?

What this means is that the legality of the patdown searches in that case will more than likely be decided by the California Supreme Court. This may take several months because of the briefing period required, oral argument, and then submission for decision.

It also means that the decision of the lower court is vacated, i.e., set aside, so that the Court of Appeal decision cannot be cited as precedent. Under California Rules of Court, Rule 8.1105.(e), the lower Court of Appeal opinion is no longer considered published if the Supreme Court grants review.

If you are very interested in following this case closely you can learn of the outcome in the California Supreme Court by signing up for email notification of all pertinent proceedings, including the announcement of the decision. (And best of all, it's free and you will not be put on countless spam lists!)

Go online and enter: http://appellatecases.courtinfo.ca.gov/. Select "Supreme Court" and then click on "Search". Enter the California Supreme Court Case Number: "S155742". Here you can see the case information and the issues the California Supreme Court will decide.

At the bottom of the page, click on "Click here" to request automatic email notifications about this case.

You can then select which actions are of interest to you. If you are only interested in reading the decision of the California Supreme Court, select the boxes "Notice of Forthcoming Opinion posted" and "Disposition Filed". (On this page you can also remove your email from any notifications.)

After you register as outlined above, you will receive an email very promptly from the Court web site(Notify@jud.ca.gov). This email will confirm your request and will ask you to verify your email. You will need to verify your email within 24 hours of your request for notification. (It's really quite simple-if I can do it, you can do it!)

It is impossible for me to predict the outcome of this case, but I do know that from a lawyer's point of view and a fan's point of view, it is very interesting, to say the least. I guess it's also possible for the United States Supreme Court to hear the case later on, but that may be a long shot. Stranger things have happened in the legal world, though.

As I said before in the earlier Almaden Times column, I will try to be on the lookout for later developments and keep my readers up to date on that very interesting topic.

/s/Donald J. DeVries

Almaden Valley

Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com (with "Almaden Times Article" in the subject line), fax at (408) 268-6502, telephone at (408) 268-9500, or mail at 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation.

Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.

Situations Where You May Not Represent Yourself In Court

This week's question:

In your last column, you mentioned that a person may sometimes represent himself or herself in court "in pro per". You also mentioned that there are a few situations where this is not allowed-but that was a topic for another day. I am really curious as to just when and why a person cannot represent himself or herself. So, can we make that "another day" now?

/s/Dylan D.

Almaden Valley

Dear Dylan--

Thank you for reading this column, Dylan, and thank you for your question. It is appreciated. "Another day" has arrived.

First of all, let's tackle the phrase, "in propria persona" or "pro per" for short. This is a Latin phrase meaning "in one's own person", according to my Black's Law Dictionary, Seventh Edition.

You also see the term "in pro se" (pronounced "proh say" or "proh see"), from the Latin, for oneself; on one's own behalf; without a lawyer. For example, the defendant proceeded "pro se". This is also according to Black's Law Dictionary, Seventh Edition.

Sometimes you can represent yourself and sometimes this is not allowed. The following are the usual situations when you cannot represent yourself:

* Guardian

* Conservator

* Trustee

* Personal Representative

* Probate fiduciary

* Corporation

* Guardian ad litem

* Unincorporated association

If you are applying to the court as one of the parties on the above list, you may not act as your own attorney in most cases. The above list is shown on the court form that is used for a Substitution of Attorney-Civil. This form has been approved by the Judicial Council of California for mandatory use. It is form number MC-050, and the latest revision is January 1, 2007.

You can see this form and other court forms on the Judicial Council web site by clicking on: http://www.courtinfo.ca.gov/forms/.

That will give you the home page. In the form list, you can enter form MC-050 or you can enter the name of the form, Substitution of Attorney-Civil.

The above-referenced Judicial Council web site is sponsored by our government, so you should not encounter any advertising or be put on any junk email lists. (No offense intended for my advertising friends-it's just that on most days now spam is overwhelming.) Other commercial companies as well offer various services relating to court forms. Your favorite search engine can lead you to many of these companies.

As stated on the Substituion of Attorney form, you should seek legal advice before you apply to the court to represent yourself. Representing yourself can have serious legal consequences, so it is advisable to see your own attorney before that step is undertaken.

As to the "why" a person may not represent himself or herself in the above categories, the reason is that you may not actually be representing yourself, but others. For example, a trustee is listed, since the person may then be representing others, such as beneficiaries. And a corporation is a separate and distinct legal entity from the person, so that when a person is representing a corporation, he or she must ordinarily be an attorney.

Most of these rules make sense, Dylan. I hope I have shed a little light on a few of them.

/s/Donald J. DeVries

Almaden Valley

Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com (with "Almaden Times Article" in the subject line), fax at (408) 268-6502, telephone at (408) 268-9500, or mail at 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation.

Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.

Patdown Searches Before You Enter The Football Stadium May Be Ok

This week's question:

I have often wondered as my family and I go into a football stadium whether those patdown searches are legal. It seems to me that they are really an invasion of privacy. It's one thing when we need to go through a metal detector but it's quite another when someone else is touching your body. Isn't this an invasion of privacy? Have there been any legal cases on this? Do we have any alternatives? This makes me sick.

/s/Marie M.

Almaden Valley

Dear Marie:

If it's any consolation, Marie, it makes me sick too. Every time we go see our favorite team that wears silver and black and plays football at the Oakland Coliseum we now need to undergo a patdown search. You would think that there's got to be a better way to enforce security in this high-tech world of ours.

That being said, yes, there has been at least one case involving a local team where the patdown search issue went to court. The case is entitled Sheehan v. The San Francisco 49ers. It was just decided on July 17, 2007.

In the Sheehan/49er case, Daniel and Kathleen Sheehan, season ticket holders for 40 years, filed suit against the 49ers for a violation of privacy, based on the team's patdown policy. According to the case, the patdown policy was mandated by the National Football League ("NFL").

In the fall of 2005, the 49ers instituted a patdown inspection of all ticket holders attending the 49ers' home games at Monster Park as a condition for entry to the games. The patdown searches were promulgated by the NFL, who concluded that NFL stadia are attractive terrorist targets based on the publicity that would be generated by an attack at an NFL game.

The patdowns were conducted by private screeners who, according to the NFL mandate, were instructed to physically inspect by "touching, patting, or lightly rubbing" all ticket holders entering the stadium.

The 49ers' specific practice consisted of screeners running their hands around ticket holders' backs and down the sides of their bodies and their legs.

Officers of the San Francisco Police Department stood nearby during these inspections. Daniel and Kathleen Sheehan are 49ers season ticket holders and were subject to patdowns during the season before each home game at Monster Park.

In December 2005, the Sheehans filed suit against the 49ers, alleging that the 49ers breached their privacy rights, in violation of the Privacy Initiative. As the Court of Appeal stated, the Privacy Initiative is found in Article 1, §1 of the California Constitution. It provides:

"All people are by nature free and independent and have inalienable rights. Among these are . . . pursuing and obtaining . . . privacy."

Unfortunately for the Sheehans, the trial court in common jargon tossed their suit out of court, ruling that they could not state a case under the facts as they alleged. The 49ers had filed a "demurrer". This is basically a motion that says even though we assume everything is true in your suit, you still haven't stated a case.

The Court of Appeal agreed with the trial court and basically said the Sheehans cannot state a case for invasion of privacy due to the patdown searches. The Court of Appeal held that ". . .the Sheehans cannot demonstrate that they had a reasonable expectation of privacy under the circumstances. . ."

The Court also stated that the Sheehans have no reasonable expectation of privacy because, by attending the games, they had advance notice of the patdown policy and thereafter impliedly consented to the patdowns by voluntarily purchasing the tickets and attending the games.

The Court concluded by saying that rather than submit to the patdown the Sheehans had the choice of walking away, no questions asked.

You can read the Sheehan v. 49ers case for yourself by logging on to the following link: http://www.courtinfo.ca.gov/opinions/documents/A114945.PDF. This is an advertising-free web site that contains legal opinions from the Court of Appeal of the State of California.

A note of caution: the case was decided very recently so I would imagine there is a chance that it could be taken up by the California Supreme Court. If that happens, I will try to be on the lookout for it and keep you posted.

In the meantime, Marie, it looks like the patdown search at the football stadium is permissible. I don't like it any more than you do, but it looks like we are stuck with it, at least for now.

/s/Donald J. DeVries

Almaden Valley

Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com

(with "Almaden Times Article" in the subject line), fax at (408)268-6502, telephone at (408)268-9500, or mail at 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Want to learn about a specific legal issue or how Mr. DeVries can help you? Visit his web site at www.almadenvalleylawyers.com. Almaden Times columns since 1986 are available there. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.

Yes, A Victim Of Domestic Violence May Sue For Civil Damages In Addition To Restraining Orders

This week's question:

My husband can be a real jerk.  We are now separated in an effort to try to work things out.  Most of the time he is ok, but sometimes he becomes very violent and even strikes and hits me.  I have heard about getting a restraining order against him, but maybe the only thing he will wake up to is a civil suit for damages.  Is this possible?  Can I get more justice than just a restraining order?

/s/Victoria V.

Almaden Valley

Dear Victoria:

I may have some good news for you, Victoria.  Yes, you may be able to file a suit for money damages against your husband for the domestic violence occurring during your marriage.

California Civil Code §1708.6 is entitled "Domestic Violence-Damages."  It provides that (a) a person is liable for the tort of domestic violence if the plaintiff proves both of the following elements:

(1) The infliction of injury upon the plaintiff resulting from abuse, as defined in the Penal Code;

(2) The abuse was committed by the defendant, a person having a relationship with the plaintiff as defined in the Penal Code.

That law goes on to state that (b) A person who commits an act of domestic violence upon another is liable to that person for damages, including, but not limited to, general damages (i.e., pain and suffering), special damages (such as medical bills and loss of wages), and punitive damages under the Civil Code.

And Civil Code §1708.6 goes on to provide that the court may also grant to a prevailing plaintiff equitable relief, such as injunction (like a restraining order), court costs, and any other relief that the court deems proper, including reasonable attorney's fees.

Also, the rights and remedies are in addition to any other rights and remedies provided by law, presumably such as a suit for infliction of emotional distress, assault and battery, and similar causes of action.

This topic was discussed at length in a recent case decided by the Court of Appeal of the State of California, Second Appellate District, Division Two, in Los Angeles.  The case is entitled Michelle Pugliese v. Dante Pugliese.  It was decided January 23, 2007.

In the Pugliese case, Michelle, who had been married to Dante for 13 years, filed suit and alleged that for several years, Dante "shoved, pushed, kicked, hit, slapped, shook, choked and sexually abused her." 

She also alleged that Dante "pulled her hair, pinched and twisted her flesh, threatened to kill her, threatened her with bodily harm, confined her in the family car while driving erratically and drunkenly and infected her with sexually transmitted diseases."  (Nice guy, huh.)

The Court of Appeal had no difficulty in concluding that Michele had established a proper claim for domestic violence.  The Court of Appeal also had no difficulty in holding that the plain language of Code of Civil Procedure §340.15 entitles Michele to seek damages (i.e. money) for acts of domestic abuse occurring prior to April, 2001, when the physical acts of domestic violence stopped.

The California Court in the Pugliese case relied on an Illinois case in reaching its conclusions concerning a "continuing tort" approach.  A "continuing tort" theory allows domestic violence victims to recover damages (i.e., money) for all acts of domestic violence occurring during the marriage, provided the victim proves a continuing course of abusive conduct and files suit within three years of the "last act of domestic violence."

The Court of Appeal also stated in part that "Domestic violence is the physical, sexual, psychological, and/or emotional abuse of a victim by his or her intimate partner, with the goal of asserting and maintaining power and control over the victim."

Also, "Most domestic violence victims are subjected to 'an ongoing strategy of intimidation, isolation, and control that extends to all areas of a woman's life, including sexuality, material necessities, relations with family, children, friends, and work.'"

You can read the Michele Pugliese v. Dante Pugliese case for yourself by heading for www.google.com <http://www.google.com>. In the search box enter Pugliese v. Pugliese and hit "go".  It should be on your screen in a second, without the annoying advertising that often accompanies web searches.

So, Victoria, this may come as good news for you and others who are in your situation.  If you have in mind to pursue this further, you may want to see your own attorney for a consultation and take it from there.  I hope it all works out for you.  Domestic violence is all too common in our society.

/s/Donald J. DeVries

Almaden Valley

Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com <mailto:don@almadenvalleylawyers.com> (with "Almaden Times Article" in the subject line), fax at (408) 268-6502, telephone at (408) 268-9500, or mail at 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation.

Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters. 

A Few Tips On How To Give A Good Deposition

This week's question:

I happened to see a serious auto accident about a year ago where a person was killed. Now I have been subpoenaed to give a deposition at an attorney's office for one of the drivers involved in the accident. What is a deposition, anyway? I do not have the funds to hire my own attorney to represent me. Is there any way you can help with some basic tips on how to do a good job at my deposition? I just want to do what's right.

Brian B.
Almaden Valley

Dear Brian:

First of all, you are doing the right thing by spending some time to prepare for the deposition. That is bound to reduce the anxiety level in the days ahead. Preparation is essential for giving a good deposition.

What is a deposition? A deposition is a court-related proceeding whereby a witness is called upon to testify about an event or series of events. It is usually conducted around a conference room table at the office of one of the attorneys involved in the case. No judge is present. A deposition is pre-trial testimony given under oath.

Who is present at a deposition? Normally, only the witness, court reporter, and the lawyers involved are present. Each party to the proceeding has a right to be present with counsel, typically the Plaintiff and the Defendant or in a family law case, the Petitioner and Respondent. Others may be present only by agreement.

The deposition may be appear to be quite informal, but each word is important. When the deposition is completed, the Court Reporter will have the testimony prepared into a booklet and you will be given an opportunity to make any corrections. The attorneys in the case may comment on any corrections or changes at the time of trial.

Here are some specific ways to do a good job at your deposition:

• Always tell the truth. A lie may lose the case. In a lawsuit, as in all matters, honesty is the best policy. Even a "little white lie" can destroy a very big case.
• Don’t guess. If you don't know, say you don't know. Don't think you have to have "an answer" for everything. Don't feel guilty about not knowing a particular topic.
• Understand the question before you attempt to give your answer. You cannot possibly give a truthful and accurate answer unless you understand the question.
• Take your time when giving answers. There is no need to rush. No one is keeping a stopwatch on your answers. Don't be intimidated into giving quick answers.
• Answer the question that is asked and then stop. This is very, very important. Don't tell a big, long story. Most questions can be answered with a simple yes or no answer. If not, a short answer will be adequate.
• Talk loudly enough so that everyone can hear you. Don't chew gum or keep your hands over your mouth. Dress conservatively and be well groomed. Remember this is an important occasion.
• Give an audible answer—one out loud—so the Court Reporter and others can hear you. Don't just nod or shake your head.
• Beware of questions involving precise dates, distances, and time. If an estimate is needed, give the estimate. Perhaps a frame of reference is needed, such as "about two average car lengths" or "it happened about a week before Christmas".
• Don't argue with the lawyer questioning you. He or she has a right to ask questions and you should not give some smart-aleck answers in return. Just answer the questions and be done with it. Do not lose your temper no matter how hard you are pressed. Always be courteous.
• Give a positive answer when you can. Some things you do not know and you may say "I don't know", but there is much that you do know, so be positive when you can.
• Irrelevant matter. Almost always, irrelevant matter comes up during depositions or trials. Don't worry about this since it is normal. If something very private or offensive comes up, you may want to take a break and try to work it out with the attorneys or suspend the deposition to acquire your own attorney after all.
• Breaks during the deposition. Breaks are taken periodically during a deposition for a variety of needs. This is not a marathon or 10K race. If you need to take a break, just say so.
• Duration of the deposition. Depositions vary in length, but the typical length is often one to two hours. Try to speak in your own words. There is no need to memorize anything ahead of time.
• Just be yourself. Perhaps the best tip is to just be yourself. There is no need to try to imitate anyone else.

Good luck with your deposition, Brian. I'm sure it will turn out just fine.

Donald J. DeVries

Almaden Valley

Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com (with “Almaden Times Article” in the subject line), fax at (408) 268-6502, telephone at (408)268-9500, or mail at 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation.

Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.